Daley v. Jennette-Mingo

205 A.D.3d 878

166 N.Y.S.3d 567 (Mem)

Kelia DALEY, appellant,

v.P.J. JENNETTE–MINGO, respondent.

2020–06877

Index No. 610244/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 14, 2022

May 18, 2022

Cellino Law LLP, Melville, NY (Joshua B. Sandberg of counsel), for appellant.

Martyn, Martyn, Smith, Murray & Yong, Mineola, NY (Megan C. Brady of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered September 3, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on May 15, 2017. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order entered September 3, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.

On appeal, the plaintiff does not challenge the Supreme Court's determination that the defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc. 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ; Sylvain v. Maurer, 165 A.D.3d 1203, 1204, 85 N.Y.S.3d 203 ).

However, contrary to the defendant's contention, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law § 5102(d), and as to whether these alleged injuries were caused by the accident (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Estrella v. GEICO Ins. Co., 102 A.D.3d 730,...